If I Lose My Lawsuit, Will I Owe Anyone Money?

This is one of those “good news, bad news” scenarios. The good news is that you probably won’t owe your own lawyer anything. Most personal injury lawyers work on a contingency fee that provides that you owe them nothing if you lose. Be sure to read your fee agreement carefully, though, as some lawyers may still require you to pay their costs.

The bad news is that the defendant is entitled to an award of its taxable costs against you. This doesn’t include every expense the law firm incurred, but it can include some very big ticket items, such as depositions and expert witness fees (these are commonly approved for testifying experts in state courts, but not federal courts, which only allow the recovery of a $40/day witness fee for both lay and expert witnesses). In cases that have been litigated for a long time, or that have gone to trial, these costs can easily get into the thousands of dollars.

The judge will enter a judgment against you for the defendant’s costs, meaning that the defendant can use any means available to a judgment creditor to recover this money from you. Often, the defendant will seek a judgment for these costs even if it knows that you have no ability to pay them. It can use this cost judgment as leverage to get you to waive any appeal rights you may have. In other words, “We’ll drop the cost judgment if you don’t appeal.” This obviously creates a dilemma for plaintiffs even if they think they have a decent chance to appeal.

In certain cases, where state laws allow it and the defendant has followed the correct procedure, you can be held liable for the defendant’s attorney’s fees as well. For example, in Florida, if a defendant makes a procedurally correct offer to settle your case under Fla.Stat. 768.79 and Fla.R.Civ.P. 1.442, and you ultimately recover at least 25 percent less than the amount offered, you will owe the defendant the attorney’s fees it incurred from the date of the offer. This type of offer has very strict procedural requirements, so your lawyer will always know when an offer has been made under this statute and can warn you of the consequences should you choose not to accept it.

Clearly, an award of attorney’s fees can easily reach the tens of thousands of dollars (and in some cases over $100,000.00), so if your lawyer ever tells you that a settlement offer has been made that can cause you to owe the defendant’s attorney’s fees, take it seriously and consider it carefully. If your lawyer fails to inform you that such an offer has been made in time for you to accept it, and you wind up owing fees because of it, the odds are good that your lawyer has committed malpractice.

As with costs, attorney fee awards against insolvent losing plaintiffs are often used as leverage to get you to not appeal.

If I Lose at Trial, Can I Get a New Trial?

There is a procedure which allows your lawyer to ask the trial judge for a new trial prior to filing an appeal. Do not get your hopes up for this motion to be granted. Sometimes, your lawyer will need to request a new trial just to preserve some of your appeal rights. Basically, your lawyer needs to give the trial judge every opportunity to correct errors before he can argue those errors on appeal.

You cannot ask for a new trial just because you are unhappy with the jury’s findings. The jury is given broad latitude to weigh the credibility of witnesses and other evidence. Even if you have three doctors saying your injuries are accident-related and the defendant only has one saying they aren’t, the jury can believe the one doctor over the three. There have to be some pretty severe and obvious procedural or evidentiary errors for a new trial to be granted. Most of the time, the trial judge allowed these errors to occur in the first place, and won’t be inclined to grant a new trial because he probably feels that his rulings were correct.

If I Lose My Lawsuit, Can I Appeal?

As with motions for new trials, you can’t just appeal because you are unhappy with the outcome of your case. You need specific grounds to appeal, the possibilities of which are too numerous to mention. In short, the trial court must have committed what’s known as reversible error in order for you to have a chance on appeal. A reversible error is one which likely affected the outcome of the case, such as allowing or excluding key testimony or evidence, or giving a jury instruction which does not accurately reflect the law and misled the jury into finding for the defendant.

Errors which would not reasonably be expected to have affected the outcome of the case are known as harmless error. For example, if the judge excluded certain evidence regarding the amount of your damages, but the jury ruled that the defendant wasn’t negligent, the exclusion of that evidence had no impact on the outcome, as the jury never reached the question of the amount of your damages.

If you lost your case prior to trial, such as on a motion for summary judgment or directed verdict, your appeal will usually depend on one of two things: (1) whether the judge decided an issue of disputed fact (which should have been decided by a jury) or (2) whether the judge improperly applied the law to the facts. Obviously, these are things that only a lawyer will be able to evaluate.

One thing common to all appeals is that the appealing party is at a huge disadvantage. The appellate court can uphold the judgment on any grounds, even those not argued by the non-appealing party or relied on by the trial judge. The rationale behind this is that if the judge reached the right decision, but for the wrong reasons, you weren’t harmed and you should lose your appeal.

On the other hand, the appealing party can only raise arguments in the appellate court that it raised in the trial court (sometimes, you are required to make the same argument several times at different points of the proceeding in order to preserve that argument for appeal). If your lawyer failed to make an argument at the trial court level, and jump through the procedural hoops required to preserve that argument, he can’t raise that argument on appeal. The rationale for this is that the appellate court will not assign error to a trial court unless the trial court was given every opportunity to avoid or correct that error.

The bottom line is that the deck is stacked against appealing parties, so don’t get your hopes up unless your lawyer feels very strongly about your chances. Waiving your appeal rights in order to avoid paying the defendant’s attorney’s fees (if applicable) or costs may be the best move you can make, assuming that offer is on the table.

If you Lose Your Lawsuit, It Doesn’t Mean Your Lawyer Screwed Up

Sometimes things just don’t go your way. Jurors latch onto very odd things at times, so don’t assume that losing means that your lawyer didn’t do the best possible job. Before you accuse him of malpractice, remember that he’s lost both time and money (often thousands) on your case as well. This is especially true if you rejected his prior advice to settle your case. Take some time to cool off before conducting your case’s post mortem. Meet with your lawyer to discuss your options after a few days have passed and remember that you may still need him should there be any chance of reversing your fortunes.

Loss of Consortium — What is It?

If you are married (or in a civil union) at the time of your accident, your spouse is entitled to be compensated for his or her loss of your comfort, companionship and services due to your injuries. Boyfriends and girlfriends cannot bring such a claim, no matter how long you’ve been together. Most people assume that loss of consortium claims are only about sex, but while disruption of your sex life is an element of these claims, it isn’t the only one. If the injured spouse is unable to perform his or her usual household duties (cooking, cleaning, yard work, child care, shopping) and now the other spouse must pick up the slack, the other spouse is entitled to compensation for the additional work. Also, if the injured spouse’s personality has been affected (depression, general unpleasantness, etc.) to the point that it has caused a strain on the marriage itself, the non-injured spouse is entitled to recover for the emotional distress occasioned by this.

Loss of consortium claims are derivative claims, meaning that they only exist as long as the primary injury claim from which they derive exists. If the primary injured party settles his or her claim, the loss of consortium claim goes away as well — so, don’t think you can be clever and settle the injured party’s claim and then hit up the insurer for the consortium claim.

Does a Loss of Consortium Claim Add Real Value to a Case?

Whether a loss of consortium claim adds real value to a case will depend on several factors. The first is obviously the value of the primary injury case. Typically, the more injured the primary party is, the more valuable the loss of consortium case will be, as a more serious injury is more likely to have a serious impact on a marriage.

The second factor is the state of the marriage prior to the accident. If your marriage was already in trouble, or if one spouse had a recent affair, your loss of consortium case will be worth a lot less than one brought by a couple previously living in marital bliss.

The third factor is how seriously your marriage was harmed by the accident. Injuries which cause sexual dysfunction will clearly increase the value of a consortium claim (assuming you didn’t previously have a sexless marriage). Seeking marital counseling will usually increase the consortium claim’s value as well, assuming you hadn’t prior to the accident. I am by no means suggesting that you engage in marriage counseling if you don’t need it. You may wind up opening a can of worms that would have remained closed without the counseling, creating a real problem where one didn’t exist — don’t risk the marriage just to increase the value of a consortium claim.

Regardless of the above factors, if you have a personal injury case which is likely to cause the tortfeasor’s insurer to tender its policy limits based solely on the primary plaintiff’s injuries, a loss of consortium claim probably won’t add any value. If the tortfeasor has split per person/per accident policy limits (as many automobile insurance policies will), the consortium claim will be capped under the same per person limit as the injured plaintiff’s claim, due to it being a derivative claim. So, unless the insurer commits bad faith, a consortium claim brought as part of an injury claim that is already worth “policy limits” doesn’t add any real value.

Even in cases involving more than adequate liability insurance coverage, it has been my experience that most consortium claims don’t add to the amount of settlement offers made by insurers. Rather, the insurer will offer the same amount it would have without a consortium claim, and make that the offer to settle both claims. So, for most cases that settle, the consortium claim just cannibalizes part of the primary claimant’s settlement, instead of adding value to it.

For cases which do not settle, and actually go to trial (a very rare thing these days), a consortium claim will add value. Because jurors assign damages to the injured party and the spouse separately, they avoid the risk of cannibalizing part of the primary plaintiff’s claim to pay the consortium plaintiff — both the primary plaintiff and the spouse get fully compensated. Of course, the amount awarded to the spouse will depend entirely on the evidence presented regarding how the primary plaintiff’s injuries have affected the marriage.

Loss of Consortium Claim Downsides

The primary downside of bringing a loss of consortium claim is that it opens up several areas of discovery to the defense lawyer which may prove embarrassing or painful to discuss. Both the injured plaintiff and the spouse can expect to be questioned thoroughly about their sex life, both before and after the accident. While most defense attorneys will handle these questions professionally, and only ask for as much information as needed to fairly evaluate the claim (which can still be pretty invasive, such as “how often you have intercourse per week”), some take a perverse pleasure from going into embarrassing details (such as positions and specific activities you no longer engage in). Most of these questions will be “fair game”, so don’t expect a judge to limit this type of inquiry.

If your marriage has overcome past difficulties, such as separation or infidelity, expect that to come up in your depositions. If you’ve had marriage counseling, expect the defense to ask for your therapist’s records (the same is true for post-accident counseling).

A lot of old wounds can be re-opened as part of the discovery process when you bring a consortium claim. I strongly suggest that you not try to hide past marital difficulties. If you do, and get caught, you’ll damaged your credibility — which will reduce the value not only of your spouse’s consortium claim, but your primary injury claim, as well.

Marital Conflicts Can Become Conflicts of Interest

Almost all loss of consortium claims are brought by the attorney who also represents the primary injured plaintiff. Both husband and wife are clients of this one lawyer. Normally, this is not a problem — but it can be.

The fact that a loss of consortium claim is being brought means that all is not well in the marriage. Obviously, the more martial problems the accident has caused, the more valuable the loss of consortium claim is — and the more likely there will be conflicts between the spouses with respect to the injury claim. If your lawyer represents both you and your spouse, he cannot advise either one of you regarding an action which may hurt the other. He cannot adjudicate differences between you as to how settlement money gets divided. To take one spouse’s side against the other would violate the lawyer’s ethical obligations regarding conflicts of interest between current clients.

Many insurers will try to settle an injury and associated consortium claim through one lump sum offer which doesn’t assign any specific sum to either spouse. Depending on your marital stability, this may not work for you. If you foresee any problems splitting up settlement money, it may be best to tell your lawyer to require the insurer to specify how much is being offered for each spouse’s claim. If your situation is particularly dire, it may be best to have the insurer write separate checks for each spouse’s settlement (of course, if you’re going to get divorced, this may not matter, as the money may get divided by the divorce court regardless of who received it).

In short, if your marriage is in rough shape, an ounce of prevention before the case settles could avoid a serious problem afterward. Your lawyer won’t be able to take sides or resolve disputes between you and your spouse if he represents both of you, but he can help settle the claims in a way that may avoid conflict entirely. Letting him know early in the process that a dispute between spouses may be on the horizon could help him settle the case in a way that avoids that dispute.

Loss of Consortium Claim — The Bottom Line

Now you may infer from all the negative information I’ve discussed that I think loss of consortium claims are more trouble than they’re worth. This really isn’t the case. The extra work in bringing such a claim for me, as a lawyer, is minimal in most cases, and consortium claims ultimately can add some extra value to the case. In more serious cases, they can add quite a bit of extra value to the case.

I point out the downsides of these claims because very few lawyers will do this (again, these claims are largely an afterthought), and because you, as a plaintiff (or spouse) need to make your own decision as to whether the extra work for you and possible embarrassment created by a consortium claim is outweighed by its value. If you’re willing to endure uncomfortable questions in order to ensure full compensation should your case go to trial, then you should bring a consortium claim. If you’d rather keep your private marital life private, even if you costs you some money, then you shouldn’t.

Before making your final decision, you should discuss this matter with your spouse and your lawyer. If you are receiving marriage counseling, you should also discuss this with your counselor — if your marriage may not survive an airing of its dirty laundry, this may be an easy decision.

When a Defendant Admits Liability, It Has Only Conceded Two of the Four Elements of a Negligence Case

As any first-year law student can tell you, a standard negligence case consists of four elements:

• Duty,
• Breach,
• Causation, and
• Damages.

In most personal injury cases, “Duty” is not a hard-fought issue. Generally speaking, it refers to everyone’s responsibility to use “due care” to not put others at risk of injury. So, a driver has a duty to maintain a proper lookout for pedestrians and other vehicles, and to operate his vehicle in a safe manner. A store owner has a duty to maintain a safe premises, including cleaning up spills in a timely manner (or warning of a wet floor) and stocking merchandise so that it doesn’t fall on customers. Most duties arise from common law (and common sense), though some may be the result of a specific statute, regulation or ordinance.

Once a duty is determined, a “breach” of that duty must occur. Examples would be a driver who gets distracted and rear-ends someone, or a store owner who allows a spill to sit for hours until someone slips on it. If a defendant disputes liability, most often it will be a dispute that he breached a duty (e.g., “I had the green light”) and not a dispute that a duty existed at all. When a defendant admits liability, he is admitting that he both had a duty and breached it. This still leaves the plaintiff to prove the remaining two elements of negligence: causation and damages.

Admitting Liability is Not the Same as Admitting Causation

Causation can refer to either (1) the cause of an accident or (2) the cause of an injury. When a defendant admits liability, he is admitting only that he caused the accident, but not necessarily that the accident caused your injuries. You still bear the burden of proving that all injuries you claim were caused by the accident.

The nature of some injuries makes causation relatively easy to prove. For instance, if you slipped and fell on a spill at the grocery store and broke your arm when you awkwardly landed on it, it would be near impossible for the defendant to claim lack of causation. What would he say, that you broke your arm beforehand and decided to go grocery shopping before seeking treatment?

Unfortunately, most personal injury cases involve injuries which could be caused by things other than the accident. A herniated disc in your back or neck might be caused by a fall or a car accident, but it could also be caused by any number of other things, such as degenerative disc disease (wear and tear over time). If you have any history of treating for pain in the area of your body you now allege was injured in an accident, expect a pre-existing condition defense to be raised. Even though you may know that your condition now is different or worse than it used to be, you’ll still have to convince a jury of that.

Because most people don’t routinely have their bodies scanned for abnormalities while they are feeling healthy, it’s unlikely that you’ll have definitive medical evidence showing that your injuries were caused by the accident. It will be your word, and hopefully the word of your treating medical providers, against the word of the defendant’s medical experts. Plaintiffs don’t always win this battle, so don’t be overconfident in your causation evidence. The more medical treatment you’ve received in the past to treat pain or injury that seems similar to the injury for which you are now seeking damages, the harder it will be to prove causation.

Other issues can also cloud a causation argument. For instance, if you do not immediately seek medical care after your accident, you leave open the argument that you actually suffered injury between the date of the accident and your first complaint to a medical provider. The longer you wait to treat, the harder it gets to prove causation.

As a subset of this particular problem, sometimes plaintiffs fail to report all of their symptoms at their initial doctor’s appointment (or the doctor fails to document them). If your back pain is excruciating, and your knee pain isn’t nearly as bad, you still need to make sure to report both to the doctor as soon as possible. If you only report the back pain, it could turn out that it’s just a soft tissue injury. Meanwhile, your knee could turn out to be a much more serious injury which requires surgery to repair. Failure to timely report the knee pain could cost you the lion’s share of damages in your case.

The best way to preserve your causation arguments in a personal injury case is to seek treatment early (immediately is always best) and to be sure to report all of your problems at the outset, not just the one that seems the worst.

Even a Defendant Who Admits Liability is Likely to Challenge Your Alleged Damages

“Damages” in the context of a negligence case refers to both economic (medical bills, lost wages, etc.) and non-economic (pain and suffering, mental distress) elements. Even in cases where the defendant concedes both liability and causation, it will almost surely dispute the amount of damages you claim.

Defendants can attack your economic damages in many ways. For medical treatment, they can claim that your treatment was unnecessary or excessive. Expect this in cases where you saw a chiropractor for a soft-tissue injury. Such a defense is also often raised in cases where a large portion of your medical treatment consists of pain management. For this reason, you need to be vigilant in ensuring that you don’t “overtreat” for your injuries. Treatment isn’t automatically reasonable just because a medical provider suggested it. Overtreating for injuries is a sure way to price yourself out of a reasonable settlement — your medical bills will eat up so much of the settlement that you will personally receive almost nothing. Don’t just “go with the flow” if your chiropractor wants to see you five days a week, or if your pain management doctor wants to continue giving you trigger point injections after past ones provided no relief. Use your common sense when self-regulating your medical costs.

Non-economic damages will always be contested by the defendant, for the simple reason that plaintiffs will almost always value their own pain higher than most third parties would. If you want $100,000.00 for your whiplash pain, expect to have to go to trial (and not get that kind of award, anyway). You need to be reasonable in determining a fair value to compensate you for your pain and suffering, keeping in mind that a jury can do pretty much whatever it wants with these kinds of damages. While you may get lucky and pick a jury that wants to shower you with money for all the pain you’ve endured (and will endure in the future), you could just as likely pick a jury that thinks you are a malingerer (i.e., you exaggerate your symptoms).

Defendants know that non-economic damages have more “wiggle room” than economic damages because there is no hard evidence or formula a jury can use to determine a fair award. They will always contest the amount of these damages, even in cases where they challenge nothing else.

The Added Danger of Going to Trial in an “Admitted Liability” Case

Plaintiffs may feel emboldened to take admitted liability cases to trial because they feel guaranteed of some kind of victory. Don’t fall into this way of thinking. A defendant doesn’t admit liability out of the goodness of its heart, or just to avoid the added defense costs. There is a very sound strategic reason for admitting liability.

A defendant who goes to trial on an admitted liability case automatically gains some credibility points with the jury. It can argue, “Look, we’re not trying to dispute that we caused the plaintiff’s accident. We just want to pay for what’s reasonable and related to the accident, and no more.” That little bit of honesty that a defendant shows in admitting liability could sway jurors to believe that you forced a trial due to an overinflated damages claim and simple greed. After all, the defendant was reasonable when it admitted that it was at fault. Why would it be unreasonable when it came to causation and/or damages?

While you and I may know that the defendant really had no choice but to admit liability, a jury will probably still give it credit for doing so. A defendant that denies liability when it is clearly liable can outrage a jury enough to award more damages than a plaintiff hoped for, but a defendant that admits liability not only diffuses that risk, but also paints itself as being reasonable and fair. So, if the jury thinks that the defendant is reasonable and fair, who do you think it will blame for forcing a trial?

Don’t Expect a Quicker Resolution Just Because the Defendant Admitted Fault

If you think that just because a defendant admits fault that it will settle your case quickly, think again. While some personal injury cases involve hotly contested liability issues, most do not. It is common for liability issues to take up a fraction of a case’s time when compared to causation and damages issues. A defendant who admits fault is not saving you much litigation time in most lawsuits. You will still need to deal with the most time consuming parts of your case. Any plaintiff who’s been deposed can tell you that only a very small amount of his or her time was spent answering questions about how the accident occurred — the vast majority of the time was spent on causation and damages questions.

Don’t get upset if I’ve burst your bubble about how great it is that the defendant admitted fault. Lawyers would still rather have a case where the defendant admits liability than one in which it doesn’t — which is why in many states where lawyers offer a split contingency fee, “admitted liability” cases stay at the lower fee percentage even after a lawsuit is filed (check your fee agreement about this). Just temper your enthusiasm about such a development with the knowledge that your fight is still only half over.

There are both practical and strategic reasons why settling with just one defendant may not be possible, or even wise. Both you and the settling defendant will have risks to evaluate before making such a decision, which will depend not only on the relationship between the various defendants, but also the laws affecting damages in your state.

How Apportionment of Damages Affects Your Ability to Settle With Just One Defendant

State laws take one of three forms when it comes to dividing damages among multiple defendants:

1. Joint and Several Liability – Each defendant is individually responsible for all damages caused by all defendants (but not for any damages caused by your comparative negligence). For example, if you suffered $100,000.00 in damages and there are three defendants, each defendant is liable for up to $100,000.00 regardless of their individual percentage of fault. If you were 20% at fault for your own injuries, each defendant would be liable for up $80,000.00. Note that your total recovery cannot exceed the total amount of damages attributed to all defendants (no double or triple-dipping just because there are multiple defendants). Under joint and several liability, a defendant who is found to be 1% at fault for your injuries may have to pay 80% of your damages because the other defendants may not be capable of paying their share (due to inadequate insurance).
2. Pure Apportionment – Each defendant is only liable for the amount of your damages equal to its percentage of fault. If your damages equal $100,000.00 and one defendant is found to be 1% at fault, that defendant would only be liable for $1,000.00. A defendant who is 50% at fault would only be liable for $50,000.00, etc.
3. Hybrid Approach – The hybrid approach is some combination of joint and several liability and pure apportionment. For example, your economic damages (wage loss, medical bills, etc.) may be joint and several, but your non-economic damages (pain and suffering) may be purely apportioned. This approach can get pretty complicated — for example, in Florida (which is now a pure apportionment state) the law used to be a hybrid approach as described above, with the proviso that economic damages were only joint and several among those defendants whose percentage of fault exceeded that of the plaintiff (yeah, it can get really complicated).

Luckily, your lawyer will know what approach to damages is taken in your state, and you generally won’t need to have a thorough understanding of these concepts. I’ve given this brief explanation of how fault can be apportioned because it will affect your ability to settle with one of multiple defendants.

Settling With One Defendant in “Joint and Several” States

In states that still employ joint and several liability, there is very little risk to you in settling with just one defendant. Because the other defendants will be still be liable for the full amount of your damages, settling with just one will not affect your ability to make a full recovery (assuming the other defendants have adequate insurance).

Unfortunately, defendants in these states may be less likely to settle individually because they may face claims from other defendants for contribution. A contribution claim allows a defendant that pays more than its fair share of damages to collect the overpayment from other defendants that paid less than their fair share. So, while you need not worry about the percentage of fault allocated to each defendant (as they are all responsible for the full amount of your damages) the defendants worry about it because it affects their ability to sue each other should you recover a disproportionate amount from one of them.

Often, even a defendant who settled with you will still be liable to a co-defendant under a contribution claim if that defendant’s settlement amount did not equal or exceed his percentage of liability. So, if one defendant manages to settle with you for less than his fair share of the damages (as later determined by a jury), he may have to pay the remainder of that share to the other defendants. This creates a pretty strong disincentive for an individual defendant to settle, for even if it gets a bargain from you, that bargain may vanish when the other defendants sue it to recover the rest of its share of the damages.

Settling With One Defendant in “Pure Apportionment” States

In pure apportionment states, defendants will be much more willing to settle individually, as there is no risk of a contribution claim from the other defendants (due to the fact that each defendant is only liable for its own percentage of fault). Naturally, this means that the risk of settling with one defendant shifts entirely to you. If you settle with a defendant for less than its percentage of fault, you will be unable to make a full recovery. Of course, if you settle for more than its fair share of the fault, you get something of a windfall.

In pure apportionment states, defendants who settle before trial will still appear on the verdict form, and a jury will still be able to apportion fault to them. This is what’s known as an “empty chair” — the other defendants get to point to the empty chair where the settling defendant should be and urge the jury to apportion as much fault to that defendant as possible.

As the settled defendant has no interest in defending itself at trial (because you can’t collect anything more from it), your lawyer will have to shift fault not only away from you, but also away from the settled defendant. So, by settling with just one defendant, you in essence lose a potential ally in the courtroom — the settled defendant’s lawyer — who could help place the blame on the other defendants. This could be a wash, however, as he’d likely try to shift some of the fault to you as well, and/or try to minimize your damages.

Settling With One Defendant in “Hybrid” States

In hybrid states, you get the best and worst of both worlds when it comes to settling with one defendant. Each side bears the risks of settlement stated above as to that portion of damages which is joint and several and that which is apportioned. This may make it easier to settle with an individual defendant, as both you and he have “skin in the game” (risk).

Settling With an Individual Defendant When One Defendant is Vicariously Liable for Another

In many cases involving multiple defendants, one of the defendants will be vicariously liable for another. Vicariously liability is a complicated legal concept, but it basically means that one defendant is liable not because of its own actions, but because of the actions of another party. The most common example is an employer being held liable for the negligence of its employee while that employee was “on the job”. The employer need not have been negligent in hiring, training or supervising its employee. It is held liable purely as a matter of public policy.

In cases involving a vicariously liable defendant, both the “active tortfeasor” (e.g., the employee) and the “passive tortfeasor” (e.g., the employer) will be jointly and severally liable for your damages, regardless of your state’s usual approach to damages (it’s impossible to apportion damages between the two, as they are both liable for the exact same conduct). Most often, they will both be covered under the same insurance policy and they will share a defense attorney. This makes settling with just one defendant nearly impossible, as the insurer will not want to settle for only one of its insureds.

Further complicating matters, many states will not allow a plaintiff to proceed with a claim against a vicariously liable defendant if the plaintiff settled with the “active tortfeasor.” So, there is a huge danger in trying to settle with an “active tortfeasor” for less than the full value of your claim. If you succeed, you may find your claim against the passive tortfeasor barred as a matter of law.

Should You Settle With Just One Defendant?

Now that you know the basic risks involved in settling with just one defendant, should you ever do it? I can’t answer that for you. Any settlement involves the risk that you will not be fully compensated. However, settling with just one defendant and going to trial against the others presents an added complication — you will know whether your settlement was a good idea or not. If you can live with that possibility, it may be worth it to secure some “sure money” early in your lawsuit and lessen your risks at trial.

Hopefully, after reading this article, you will feel more comfortable discussing the various risks of settling with just one defendant with your lawyer. Trust me when I tell you that I have not covered all of those risks, just the most common ones. There are too many possible combinations of “related defendants” and various state laws to give them all a thorough discussion. Your lawyer will have to fill in the details for you. Be warned — it may get pretty complicated.

Unfortunately, we receive little to no education about nutrition or exercise growing up, so we feel powerless to deal with the problem. Combine this with conflicting information from various diet programs and books, along with ridiculous claims from manufacturers of exercise equipment and weight loss supplements, and it’s no wonder that most people have no clue as to how to lose weight and keep it off. While the subject of weight loss is “off topic” for this website, as it really can’t be classified as legal information, it is keeping with the spirit of trying to help my readers, and it is of particular interest to me personally (for good reason).

I Used to Be Fat

Yes, I’ll admit it. I used to be fat. I was a fat kid growing up. I lost a lot weight towards the end of high school, then regained some during college, lost it again, then started gaining again during law school and thereafter, until by March of 2008, I weighed over 220 pounds (and it was not muscle). I had no excuses. I wasn’t disabled. I didn’t have a medical condition. I just ate poorly and never exercised.

Finally fed up (see what I did there?) with being fat and out of shape, I turned to the internet for help and I got extremely lucky. I stumbled across the e-book Burn the Fat, Feed the Muscle after reading some glowing reviews and I bought it. The book is huge (over 300 pages), but none of it is filler. What surprised me the most about it was that it primarily focused on nutrition (you’d think from the muscle men on the cover that it was more about weight lifting, but it’s really not). I learned more about what to eat (and how much of it) from this book than I had learned in my entire life.

To this day I haven’t read a more simple but comprehensive explanation of how the amount of calories and proportion of proteins, fats and carbs you eat affects your weight. The best thing about the book is that it allows you to be flexible. You eat normal grocery store food (not pre-packaged meals or shakes), and you don’t stop eating fats or carbs (it turns out that you actually need them). The book teaches you how to make better food choices, how to read food labels, and how to calculate the right amount of food you should eat to lose weight.

I Lost 70 Pounds In 9 Months and Kept It Off

Using this book, I lost 70 pounds in 9 months (which I’ve kept off to this day, 4 years later as of this writing). While the book advocates exercise in addition to eating healthy, I lost the first 40 pounds before I even started exercising. Just following the book’s nutritional information can yield powerful results (of course, it’s even more effective if you exercise as well). This is the main reason that I suggest buying this book to anyone who may have restrictions preventing certain types of exercise, such as someone who’s suffered an injury. You can tailor the plan to your activity level.

The reason I find this program to be successful in keeping the weight off is because it’s not one of those temporary fad diets that you can only tolerate for a short period of time. You make your own menu using the nutritional guidance in the book, so you can find a wide variety of foods you like. Therefore, you’ll never get sick of it. I’m not going to lie and say you can eat whatever you want — some foods are just plain awful from a nutritional standpoint. I will say that this is a nutritional plan that anyone can live with and be happy, because of its flexibility.

A Warning About the Burn the Fat Website

For anyone who takes my advice and heads over to the Burn the Fat, Feed the Muscle website, prepare for way too much sales copy, too many testimonials and just too many shiny objects. I’m saying it would be kind to call the website busy. Just skip to the bottom and buy the basic Burn the Fat system. There’s no need for the “deluxe edition” or any other bells and whistles the author may try to sell you along with the book. The standard Burn the Fat, Feed the Muscle e-book alone has all the information you need.

Why Should You Believe Me?

I’m hoping that, through my legal information articles and my answers to your questions in the comments section, I’ve earned a certain amount of your trust as someone who shoots straight. I would not throw away that goodwill promoting this book if I hadn’t bought it, read it, applied it and benefited from it myself. If you’ve struggled with your weight, either due to injury from an accident, or, like me, through general unhealthy living, following the Burn the Fat program will work for you — yes, women, too. You don’t have to have an iron will to follow this program. I didn’t when I started it. It will take effort and some sacrifice, but the payoff is more than worth it.

Writing a Demand Letter — Your First Settlement Offer

In theory, you could just call the defendant’s insurance company and tell them how much money you demand to settle your claim. This is not how lawyers do it, and for good reason. By presenting your first offer in the form of a demand letter, you get to present not only your initial settlement offer, but also the grounds for making such an offer in a well-thought-out, organized fashion. It lets the insurer know that you’ve actually put some thought into your offer and that you’re more sophisticated than the average “lawyerless” claimant. In other words, you are not someone to be messed with.

My suggestion for how to organize and present your demand letter is just that — a suggestion. You should consult other sources or buy a book and combine my advice with that of others to find an approach that works best for you. Here is how I suggest your settlement demand letter be structured:

The Claims Information Section: Between the insurer’s address and “Dear Sir or Madam”, you should have a block of information that quickly lets the adjuster know the following:

• Name of Claimant: <your full name>
• Name of Insured: <the name of the tortfeasor — either a person or business>
• Policy Number: <the policy number of the tortfeasor if you have it>
• Claim Number: <if the insurer gave you a claim number, enter it here>
• Date of Loss: <the date of the accident>

The Introduction: In the first paragraph, you want to state that this is a time-limited demand to settle the above-referenced claim and that the offer to settle will lapse and be revoked unless you receive a settlement check in the amount demanded (don’t specify an amount here — wait until the end of the letter) within 30 days. Thirty days is standard for such a demand. It has the additional benefit in cases in which you are requesting policy limits of preserving your right to bring a bad faith lawsuit should the policy limits not be paid.

Give a very brief description of the accident, such as “the automobile accident which occurred on “X” date, or the “slip & fall accident which occurred in “X” store. You then state that “The particulars of the claim are as follows:”, and you begin your section-by-section description of the claim. For each of the following sections, I suggest you use the actual bold headings I provide in your letter so the adjuster knows how the claim is organized.

The Claimant: Here, you state your full name, age and gender (e.g., John Doe is a 35-year-old white man) and provide any useful information about yourself from prior to the accident, such as your occupation and the status of your health (e.g., . . . who worked as a truck driver for the past 10 years and was in excellent health). If you had no prior medical conditions, say so. If you did, here’s your chance to try to minimize their impact. You should disclose pre-existing conditions (the insurer will find out eventually), but you should distinguish them from the injuries you suffered in the accident (either you had fully recovered and this is a re-injury, or the accident exacerbated them) or state that they are unrelated to the injuries from the accident (e.g., you had a prior knee surgery, but you are not claiming a knee injury from the accident).

If you are married and/or have children, include that here. Feel free to include anything that humanizes you so that the adjuster may see you as more than a number (charity work, community activities, etc.) or anything that may be relevant to the claim that you are making (hobbies or sports that you like that you will later say have been affected by the accident).

Description of the Accident: This is fairly self-explanatory, but I suggest that you only give the level of detail needed to convey the essential facts. If you were in a car accident, for example, you wouldn’t need to say where you had been or where you were going at the time of the accident. You don’t need to describe your emotions or what a horrible person their insured is. Think more along the lines of what appears in an accident report — the where, the when and the how.

Liability: Because this follows the accident description, this should just be a very short statement of why their insured is at fault for the accident. For example, “It is clear from the above description of the accident that your insured is 100% at fault and that there was nothing I could do to avoid the accident”.

Injuries Suffered and Medical Treatment Received: This section is also fairly self-explanatory. Be thorough as to what parts of your body were injured. Include everything, not just the worst injury. Use your medical records (which you should have gotten before you started writing) to help you give a summary of the treatment and tests you received, as well as their level of success (keep it to a summary — you’ll be sending the medical records with your demand). Identify any prescription medications you have taken and if you will need to take them in the future. If this is an automobile accident case in a “no-fault” state, be sure to state which of your injuries, if any, are permanent.

When you’ve finished describing all of your past care, describe the types of future care you will need (according to your doctor). Include any drugs you will have to take, any physical therapy or follow-up doctor appointments you will need. If you will need to do daily exercises at home from now on to maintain your current level of functioning, include that as well.

Economic Damages: In this section you will describe both your past and future “economic damages,” which will mainly be your medical costs and wage loss. Use the information from your medical billing documentation to add up your health care costs. Be sure to include your drug costs (your health insurance info should help). Use the full amount the health insurer had to pay, not just your co-pay (don’t forget that you’ll have to pay back your health insurer). Remember to include the cost of all of your anticipated future medical care, including drugs you will need to take. If you’re not sure how much certain treatments will cost, this site may help.

For your wage loss claim, include any “sick time” that you needed to use due to your injuries. If you lost your job, or had to take a less physically demanding job, include the total loss or difference in your pay going forward into the future as part of your future wage loss claim. Guesstimate if you don’t have exact numbers — just be reasonable in your estimation.

Finish this section by totaling your past and future economic damages (for easy reference). Say that your “future” economic damages figures are conservative and will likely be much higher if you have to litigate.

Non-Economic Damages: Your non-economic damages are your pain and suffering (physical) and emotional distress (mental) damages. Describe both the pain from the accident and from your medical treatment — it’s all recoverable. Describe your current level of pain and how you will have to live with that for the rest of your life. If your injuries put you at risk for future arthritis (many injuries do — ask your doctor) state this and describe how this will cause your pain to increase in the future.

Describe any physical limitations that you have now, such as lifting or range of motion restrictions. Identify some of the things that you used to love to do but can’t do now because of these injuries (playing with children, golf, bowling, etc.). If you’ve gotten depressed, especially if you’ve treated with a mental health care provider, include this information (don’t forget to include his bills in the economic damages section, either).

Finish this section with a broad figure that encompasses both your past and future non-economic damages. Make it a large number because this is where you will be padding your demand for negotiation purposes. Don’t be conservative at all with your number (but say that you are).

Demand for Settlement: This section is your summary, wherein you list the different dollar amounts for the economic and non-economic damages you’ve previously identified and total them into the final demand for settlement. If the number seems too low to you, go back and tweak some of your other numbers (but not the past medical or wage loss, as those are fixed), such as your pain and suffering or future wage loss.

Come up with a number that is far higher than you want to receive as your final settlement. Don’t be naive and think that you’ll impress the adjuster with your reasonableness. Adjusters know that initial offers are exaggerated and expect you to negotiate down from them. If you start off reasonable, you’ll be negotiating down from “reasonable”.

When you’ve finished your demand letter, have someone else proofread it for you (not me — don’t even ask) and make sure it reads well. When you’re satisfied with the letter, send it, along with copies of all of your supporting documentation, to the insurer.

Special Notes for Car Accident Cases

Property Damage: If you were in your own car at the time of the accident, you probably also have a claim for the damage to your car. This should be handled by a different adjuster at the insurance company than the one handling your bodily injury claim, a “property damage” adjuster. As this article is already quite long (and getting even longer), I’m not going to address how to settle your property damage claim. You can buy a very cheap guide which shows you how to handle that aspect of your case by clicking this link.

You can handle your property damage claim immediately after your accident without waiting for your bodily injury claim to ripen. Just make sure that you don’t give any recorded statements to the adjuster (I’m assuming the accident report will state that the other driver was at fault). Inspections of your car are fine, and expected. Be sure that any release you sign as part of your property damage settlement does not release the insurer from your bodily injury claim.

Uninsured/Underinsured Motorist Issues: If you are sending a demand to an underinsured driver’s insurer (you’ll be demanding policy limits), to be safe you should make the settlement contingent upon the agreement of your own UM insurer. Just include a line in the final section of the letter stating that. In some states, such as Florida, if you don’t get the approval of the UM insurer before settling with the tortfeasor, you waive your right to collect UM insurance.

You can send practically the same demand letter to your UM insurer that you sent to the tortfeasor’s bodily injury insurer. Just add a section stating the policy limits of the underinsured driver and include a copy of the paperwork which supports those policy limits. When you make a settlement demand to your UM insurer, remember to deduct the policy limit amount of the BI insurer from the total settlement value. So, if your settlement valuation comes to $60,000.00 and the BI insurer has $25,000.00, you would demand $35,000.00 from the UM insurer (or its policy limits, if they are lower).

What Happens After the Settlement Demand Goes Out?

Mark your calendar to note the day your demand expires. Hopefully, you’ll hear from the insurer before then, either by mail or by phone, with either an acceptance of your offer or a counter-offer. If you do not hear from the insurer by the deadline, and think that you may have grounds for a bad faith case, you should call a personal injury lawyer and bring your demand package in for him to review immediately. If you don’t think you have a bad faith case, it’s up to you whether you want to contact the insurer to check on the status of the demand or just hire a lawyer.

Don’t try to trade numbers back and forth with the adjuster during a single phone call to settle your claim. Take some time to consider his counter-offer. Make notes about anything he identifies as weaknesses in your case, or reasons for not offering more money. Look into his claims and form counter-arguments before making a counter-offer of your own. Take your time and don’t try to rush things. Remember that smaller moves may make the process take longer, but they are safer.

Negotiating Tip: Often, parties trying to settle a claim use their offers to send a message to the other side about where they ultimately want the settlement to go. Pay attention to number in the middle of the two offers (e.g., if you’re at $50,000.00 and he’s at $10,000.00, $30,000.00 is the middle — just add the last two offers and divide that by 2). If the adjuster’s offers are increasing at a lower rate than your offers are decreasing, it means he’s trying to pull the middle number down.

Usually, parties to settlement negotiations want to get to the point where they can “split the baby” and reach a settlement. Keep this in mind when making new offers. If the adjuster isn’t moving enough, make your own moves smaller to send the message that you see the “ultimate settlement figure” as being higher than him. Note that this “middle seeking behavior” doesn’t really happen until after the first one or two offers, after your opening number has come down into a more reasonable range. So, don’t be too reluctant to make a large move in the beginning — it may be necessary to start talking real numbers. Use some of the padding you’ve built in to your offer to make that move.

When to Bail Out and Hire a Lawyer

If, after trading a few offers with the adjuster it appears that you two are on different planets when it comes to valuing your case, you may want to just have a lawyer take over before your offers get too low. You don’t want a potential lawyer to be boxed in by your lowest possible settlement offer, as it will be very difficult for him to ever negotiate higher than that (and he’ll have to if you want him to offset his fee in the process). Don’t jump just because the adjuster’s first offer is low — this is a natural response because your first offer will always be too high. You’re just going to have to use your instincts to tell you if it looks like the settlement isn’t going to reach a number you can live with, so you know whether you should press on or hire a lawyer. That’s just one of the burdens of trying to settle on your own. Good luck!

Settling Your Own Accident Case — Before You Start, Know Your “Limitations”

The absolute first thing you should do if you want to try to settle your own accident case is find out the statute of limitations (the date by which you must file a lawsuit) for your claim. I’m not going to go to the trouble of looking up all the statutes of limitations for various negligence claims in all 50 states just to list them here. I’m sure that there are tons of websites (mostly law firm websites, I’d bet) that can tell you what the statute of limitations is for negligence in your state. Google is your friend.

Be aware that if your case is a car accident involving a UM claim, a different statute of limitations may apply to that claim than the one that applies to your negligence claim against the other driver. For example, in my home state of Florida, the negligence statute of limitations is 4 years, but the statute of limitations to bring a lawsuit against your UM insurer is 5 years (this is the statute of limitations for claims brought on a written contract). In your state, be sure that this statute of limitations is not shorter than that for a negligence claim.

While it may seem that the statute of limitations for your claim gives you plenty of time to negotiate a settlement, you must remember that you’ll need to leave a certain period of time left, in case your negotiations go badly, to allow you to hire a lawyer. You’ll have a much easier time finding a lawyer if your case has a year left on its statute of limitations than if it only has a few days. The reason your claim may take longer than you expect is addressed in the following section.

Settling Your Own Accident Case — Do Not Jump the Gun

While I realize that one of the reasons you want to try to settle your own case is to possibly get your money faster than you would if you hired a lawyer, do not try to settle your case before it is ready. Do not make any settlement offers before you have reached maximum medical improvement. This will require a great deal of patience on your part, as it may require you to wait upwards of a year (or more) before you try to settle, but it is necessary to ensure that you are fully compensated.

If you don’t wait until you reach maximum medical improvement, you cannot reasonably calculate how much your case is worth. Your medical treatment may not go as planned, especially if it involves a future surgery. You want to know that all possible medical complications are behind you before making a settlement offer. If you don’t, you risk settling for far less than your case is worth.

The only possible exception I can imagine for this rule is if you’ve already incurred damages which far exceed the defendant’s policy limits. For example, if the defendant has only $10,000.00 in liability insurance and your medical bills are already $20,000.00, you don’t have to wait to reach MMI to demand the full policy limits from the defendant’s insurer. Of course, this is a bad situation to be in (as you won’t be fully compensated), so hopefully this exception doesn’t apply to you.

Contacting the Defendant’s Insurer Before You’re Ready to Talk Settlement

It is very likely that if you don’t contact the defendant’s insurer shortly after the accident, it will contact you. The adjuster will likely be very pushy and eager to learn about your claim and start trading settlement offers. Until you’re ready to make an offer, which will most likely be many months after the accident, politely decline to engage in discussions about the case or talk settlement. Do not give a recorded statement. Do not give the insurer a release to get your medical records or wage information. Let the adjuster know that you will make a settlement demand and provide all relevant documentation only after your have reached MMI. Exception: if you have a car accident case that includes a UM claim, you will have to give a statement and provide the requested documentation to your UM insurer (and only your UM insurer, not the other driver’s liability insurer). If you don’t, you risk violating your own automobile policy’s “cooperation clause” (which requires you to cooperate in providing claims information) and voiding your coverage.

The only thing you want from the adjuster at this point is the claim number and policy limit information for the defendant. You want this in writing, in the form of the “declarations sheet” (a/k/a “dec sheet”) for the policy. Some states require the insurer to give you this by law; some states do not. For those that do not, the insurer will often voluntarily provide this information anyway in the interests of trying to settle the case. If you’re in a state that doesn’t require liability policy limit disclosure and the insurer won’t provide the information to you, you can still try to settle your case, but it will be harder. You may just want to hire a lawyer if that happens.

Things You Should Gather Before You Make Your First Settlement Offer

Your first settlement offer should be in writing, in the form of a demand letter (more on that in Part 3). It should be accompanied by all of the documentation that supports your claim. This includes your medical records and medical bills from all relevant medical providers (click this link if you need help in getting medical records). If you have documentation to support a wage loss claim, such as pay stubs from before the accident and anything showing that you missed work afterward, that should be included with your demand. If it’s a car accident case, you need to get a copy of the long-form accident report, which should also be included. If there were witnesses to your accident, see if you can obtain written witness statements, along with their contact information.

For your own benefit (not necessarily to include with your demand letter), if you used health insurance to pay for your accident-related treatment you should request subrogation information from your health insurer. This is an itemized listing of all payments your insurer made for accident-related medical treatment. You need this in order to know how much you’ll have to pay back to your health insurer from the settlement of your accident claim. You can get this information by calling your health insurer’s subrogation department.

You should also make a list of all of your out-of-pocket medical expenses, such as co-pays, over-the-counter medications, orthopedic braces, hot/cold packs, crutches, bandages, etc. You should gather your receipts for these items, even though I really don’t suggest including them with your demand letter. This is more for your personal use in preparing the demand, or for if the insurer requests that you support your claimed expenses (usually these are a drop in the bucket compared with your other medical costs, so it’s not an issue).

If you have any photographs that are relevant to the accident or your injuries, such as pictures of your damaged automobile or of any visible injuries to your body, make copies of these to include with your demand. If your case was a slip and fall, you can take pictures of the shoes you were wearing (assuming they are sensible and actually help your case) at the time of the accident. If the slip involved a liquid which got on your clothing, any photos which show the wet clothing may be helpful. As a side note, you should always try to preserve the shoes and clothes you were wearing during a slip and fall as they were after the accident — don’t wash them or wear them again. If you fell due to a hidden hazard, such as uneven pavement, that will show up on a photograph, take pictures of that as well.

When You’re Ready to Make Your Settlement Demand

Once you’ve reached maximum medical improvement and gathered all the documents necessary to make your settlement demand, it’s time to write your settlement demand letter. This is covered in Part 3 (the last part, I swear) of this article.

Should You Settle Your Own Case? Factors Which Weigh Against Trying It

If your case is more complicated than (1) a car accident, (2) a slip & fall or (3) some other form of premises liability claims (e.g., something falls off a high shelf onto you at a store), I would not suggest trying to settle it on your own. Medical malpractice, product liability cases and cases against government agencies (even car accidents and slip & falls involving a government defendant) should really be handled by a lawyer. Not only do they involve complicated areas of the law which can confuse even attorneys who don’t specialize in that area, they usually have hidden dangers, such as shorter statutes of limitations, damages caps or procedural requirements which must be satisfied in a short period of time to preserve your right to sue. Leave these types of cases to the lawyers, particularly lawyers who are well versed in those areas of the law.

Cases Which I Strongly Urge You Not to Try to Settle Your Own

Even assuming your case is more of a “run-of-the-mill” type personal injury claim, that doesn’t necessarily mean you should try to settle it yourself. Some factors which strongly weigh against you trying to settle a case on your own are:

• The Defendant denies liability (fault) for the accident or alleges that you are also at fault. Generally speaking, if the defendant has a liability defense, the case is much harder to settle. If the insurer thinks that it has a chance of winning outright at trial (getting a defense verdict) this is especially true. This is true to a lesser extent in “comparative fault” cases, such as car accidents in which the defendant claims that you weren’t wearing your seat belt or slip & fall cases in which the defendant claims that the hazard was “open and obvious”. Lawyers have a very hard time settling cases involving disputed liability without having to file a lawsuit. Expect it to be twice as hard, if not impossible, for you to do it on your own. If you attempt settlement negotiations and the insurer raises these issues, I’d suggest you stop the negotiations and just hire a lawyer.
• There is more than one Defendant. Cases involving multiple defendants, like a multi-car accident or a premises liability case that may involve not only the property owner, but also an outside maintenance company and/or manufacturer (such as a case involving a faulty elevator) are examples of this. I would not include cases which involve UM insurance, as that still only involves one at-fault party — it just includes an additional source of liability insurance to pay for the damages caused by that party. In cases which truly involve multiple defendants who may have varying levels of liability, I’d suggest hiring a lawyer. They tend to be too complicated for a lay person to handle.
• Your claim also involves a related workers compensation claim. If you are injured by a third party (not a co-worker) while in the course and scope of your employment — say you get in a car accident while driving somewhere for work — you will have both a workers compensation claim and a personal injury claim. These types of cases have numerous pitfalls which a lay person would have a hard time handling. The reimbursement of the workers compensation carrier and the fact that your workers compensation doctors will likely be biased against you (and therefore hurt your personal injury claim) are issues that are better left for a lawyer to navigate.

Other Factors to Consider When Deciding Whether to Settle Your Own Case

While I consider the above-listed items to be “deal breakers” when it comes to trying to settle your own case, there are some other factors which need to be considered as well:

• The amount of money that is at stake. The value of your case will be influenced not only by the extent of your injuries, but also by the amount of available insurance coverage. Generally speaking, the more money that’s at stake, the more likely it is that you’d be better served by having a lawyer. An exception to this rule is the unfortunate circumstance in which the value of your injuries clearly exceeds the amount of insurance coverage available. If you’ve got $40,000.00 in medical bills from a “clear liability” accident and there’s only $10,000.00 in insurance coverage, hiring a lawyer is not likely to increase your recovery — in fact, it is more likely to decrease it, due to the attorney’s fees and costs. Most insurers will quickly roll over and pay policy limits in cases such as this whether you have a lawyer or not, because they fear being sued for bad faith.
• Your level of comfort in tackling settlement negotiations. If you suck at negotiating, if you feel that you “aren’t smart enough” to handle this, or if you’d just rather not have to deal with the headache, hire a lawyer. Don’t try to be something you’re not just to try to save a few bucks or to impress a loved one who may be pressuring you to try to handle the case yourself. Yes, you can screw up so badly in your settlement attempt that no lawyer will want your case afterwards (you shouldn’t screw up this badly if you follow my suggestions in Part 2, but you know what they say about free advice). You should only try to settle your case if you truly feel comfortable about it. If you’re a super haggler and an excellent speaker and writer, you should do fine.

Your personality and intelligence will play a large role in your success (or failure) in trying to settle your accident case. People who are smart, calm, patient and assertive will fare far better than those who are not. Settlement negotiations in a personal injury case are not the same as negotiations over the price of a used car. It is a more drawn out process which involves skill not only in determining how much you should move with each offer, but also in arguing (without being argumentative) the merits of your case. I’m not saying you need to be a genius who was captain of your high school debate team (most lawyers aren’t), but you do need solid communication skills and confidence in your ability to negotiate.

Would Hiring a Lawyer Result in a Larger Settlement?

In most personal injury cases where the defendant is adequately insured, having a lawyer will get you a larger settlement. This is simply due to the fact that the insurer expects the lawyer to immediately file a lawsuit if he can’t settle the case through pre-suit negotiations. Aside from their experience in handling settlements, it is the imminent threat of a lawsuit that gives attorneys a distinct advantage over lay people.

That being said, your goal in trying to settle your own accident case is not to meet or exceed the gross settlement amount an attorney would get. You are only concerned with the net settlement amount you receive (the money which goes directly in your pocket). You need only achieve a gross settlement of more than 66% (the typical pre-lawsuit attorney fee being a 1/3 fee) of what a lawyer would have gotten you to achieve higher net settlement amount. So, if a lawyer could settle your case for $20,000.00, you need only settle for more than $13,333.33 to personally get more money by settling on your own. That’s a pretty big incentive to try to settle your own case.

If, after reading this, you’re convinced that you want to try to settle your own case, proceed on to Part 2 of this article.

While different lawyers have different methods, it is fairly common for plaintiffs’ lawyers to mail their clients the defendant’s interrogatories with fairly limited instructions on how to answer them. This is because the lawyer plans to tweak and modify your answers before preparing them in final form for your signature. So, many times plaintiffs will receive them with only the vague instructions to “answer as best you can” and return them to the lawyer. To save you some time and anxiety when the time comes to answer interrogatories, here are some basic instructions on how to answer them.

The Four Basic Types of Interrogatories in a Personal Injury Case

The first set of interrogatories, called initial interrogatories, sent out in personal injury cases are fairly standardized. In my home state of Florida, the Florida Rules of Civil Procedure actually contain standard initial interrogatories which must be used by both the plaintiff and defendant in personal injury cases (with extra standard instructions for car accident and medical malpractice cases). Even if you’re not in a state which has such mandatory interrogatories, it’s a safe bet that the lawyers in your state have developed standard questions which run along similar lines. If, after reading the defense lawyer’s interrogatories, you’re wondering “why did he ask me that?”, see this article.

The four basic types of initial interrogatories (aside from the obvious ones, such as “State the name and address of the person answering these interrogatories”) are:

1. List questions,
2. Yes/No and if yes questions,
3. Narrative questions, and
4. Lawyer questions.

How you answer each question, and how thorough your answer should be, depends upon the type.

How to Answer Interrogatories — List Questions

List questions are interrogatories you usually must answer in the form of a list. Examples of these would be:

• List the names, business addresses, dates of employment, and rates of pay regarding all employers, including self-employment, for whom you have worked in the past 10 years.
• List all former names and when you were known by those names. State all addresses where you have lived for the past 10 years, the dates you lived at each address, your Social Security number, your date of birth, and, if you are or have ever been married, the name of your spouse or spouses.
• List the names and business addresses of each physician who has treated or examined you, and each medical facility where you have received any treatment or examination for the injuries for which you seek damages in this case; and state as to each the date of treatment or examination and the injury or condition for which you were examined or treated.
• List the names and business addresses of all other physicians, medical facilities, or other health care providers by whom or at which you have been examined or treated in the past 10 years; and state as to each the dates of examination or treatment and the condition or injury for which you were examined or treated.
• List the names and addresses of all persons who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues in this lawsuit; and specify the subject matter about which the witness has knowledge.

You should answer these as thoroughly as possible, as omitting items from these lists may prevent you from calling certain witnesses or introducing certain evidence later. When these questions ask for specific dates, such as the ones asking for dates of medical treatment, don’t waste time trying to list each specific date on which you saw your doctor (your medical records will provide this information). Rather, just list a range, such as “March 2010 – February 2011″. If you can’t narrow it down to the month, just list the years. Interrogatories such as these are not expected to be answered with specificity to the day, even though they seem like that’s what is being asked.

If you know that you are omitting things from the list — for example, if you can’t recall all of your treating doctors for the past 10 years and you don’t have any records to refresh your memory — note in your answer that there are others that you cannot recall and try to identify these items as best you can. In the case of doctors, you could say “I know that I saw another physician whose name I cannot recall at this time, despite my best efforts to research the matter. He was a family physician in Orlando, Florida that I saw for the flu in 2002.”

With respect to identifying “all people who have knowledge about your case”, be specific about their names and addresses and vague about the subject of their knowledge. For example, if someone was in the car with you at the time of the accident, you would identify that person specifically and state that he “witnessed the accident — was in my car at the time.” For people you expect to testify as to how the accident has affected you, such as your family members, identify them, state their relation to you and just list them as having “knowledge about how the accident affected my life.”

If you need to go through your records to answer these type of interrogatories completely, do it. Unlike depositions, in which you are only required to answer questions with the knowledge in your head, you are expected to answer interrogatories, especially list-type ones, using any and all resources within your control.

How to Answer Interrogatories — Yes/No and if Yes Questions

“Yes/No and if yes” interrogatories should be fairly obvious. They ask a “Yes/No” question, with a follow-up question only if your answer to the first part is “yes”. Examples of these are:

• Do you wear glasses, contact lenses, or hearing aids? If so, who prescribed them, when were they prescribed, when were your eyes or ears last examined, and what is the name and address of the examiner?
• Have you ever been convicted of a crime, other than any juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of 1 year, or that involved dishonesty or a false statement regardless of the punishment? If so, state as to each conviction the specific crime and the date and place of conviction.
• Were you suffering from physical infirmity, disability, or sickness at the time of the incident described in the complaint? If so, what was the nature of the infirmity, disability, or sickness?
• Did you consume any alcoholic beverages or take any drugs or medications within 12 hours before the time of the incident described in the complaint? If so, state the type and amount of alcoholic beverages, drugs, or medication which were consumed, and when and where you consumed them.
• Were you charged with any violation of law (including any regulations or ordinances) arising out of the incident described in the complaint? If so, what was the nature of the charge; what plea or answer, if any, did you enter to the charge; what court or agency heard the charge; was any written report prepared by anyone regarding this charge, and, if so, what is the name and address of the person or entity that prepared the report; do you have a copy of the report; and was the testimony at any trial, hearing, or other proceeding on the charge recorded in any manner, and, if so, what is the name and address of the person who recorded the testimony.

For these questions, if your answer is “no,” that is all you need to write. If you answer “yes”, answer the rest of the question as thoroughly as possible, just as you would answer a list-type question.

How to Answer Interrogatories — Narrative Questions

Narrative questions are those which ask for answers in the form of a narrative description. These are the trickiest to answer, and should be answered as vaguely as possible. Examples of narrative questions are:

• Describe in detail how the incident described in the complaint happened, including all actions taken by you to prevent the incident.
• Describe in detail each act or omission on the part of any party to this lawsuit that you contend constituted negligence that was a contributing legal cause of the incident in question.
• Describe each injury for which you are claiming damages in this case, specifying the part of your body that was injured, the nature of the injury, and, as to any injuries you contend are permanent, the effects on you that you claim are permanent.

Most plaintiffs tend to write a short story in response to these types of questions, using far more detail than they should. Instead, your goal should be to answer as briefly and vaguely as possible while still giving a complete answer. For example, when asked how the incident occurred, you could write “I was stopped at a red light when the defendant rear-ended my vehicle. There was nothing I could do to avoid the accident.” This second sentence should always be your response to “what could you have done to avoid the accident.” Don’t speculate as to what you could have done. That’s the defense attorney’s job. Don’t do it for him.

You don’t need to include irrelevant details such as where you were going or what you were doing at that particular intersection. You don’t need to mention how you looked up at the rear-view when you heard screeching tires. All of these details will be covered at your deposition, so there’s no need to lock yourself into them now (risking possible inconsistency at your deposition).

When asked what the defendant did wrong, once again be vague. “The defendant failed to maintain a proper lookout while operating his vehicle.” “The store failed to maintain a safe premises by allowing a liquid, about which it either knew or should have known, to remain on its floor and/or failing to warn customers about the liquid.” Don’t add any unneeded details.

When describing your injuries, be sure to include every affected body part — leaving out what seems like a minor injury could hurt your lawsuit if that injury becomes more serious later on during the case. Don’t try to list every specific medical diagnosis. Answer as a non-doctor would. “My lower back was injured, causing pain and intermittent numbness and weakness in my legs. I believe this injury to be permanent.”

If your own lawyer wants you to add more detail to your answers to narrative questions, he’ll let you know. Don’t make more work for yourself and your lawyer by starting with a long answer that he’ll just wind up shortening.

How to Answer Interrogatories — Lawyer Questions

There are some interrogatories that only your lawyer will be able to answer. Hopefully, your lawyer will point these out when he mails the interrogatories to you. Generally, these questions involve other settlements or experts, witnesses and evidence that will be used at trial. For example:

• Do you intend to call any expert witnesses at the trial of this case? If so, state as to each such witness the name and business address of the witness, the witness‘s qualifications as an expert, the subject matter upon which the witness is expected to testify, the substance of the facts and opinions to which the witness is expected to testify, and a summary of the grounds for each opinion.
• Have you made an agreement with anyone that would limit that party‘s liability to anyone for any of the damages sued upon in this case? If so, state the terms of the agreement and the parties to it.
• List all witnesses that you intend to call at the trial in this matter and any documents or other tangible items you intend to introduce as evidence at the trial in this case.

Just leave these blank. Most of the time, these will be served too soon in the case to answer, and your lawyer will answer by saying that “no final decisions have been made as to [experts] [trial witnesses] [trial evidence] at this time.”

What Happens After You Return Your Draft Interrogatory Answers to Your Lawyer?

As an initial matter, your draft interrogatory answers should be returned to your lawyer as quickly as possible. He will need time to revise them into final form and have you come in to sign them before sending them to the defense lawyer within the 30-day deadline. Keep a copy of your draft answers, so you can compare them to the final answers your lawyer prepared.

When your lawyer calls you in to sign the final answers, take the time to read them thoroughly, comparing them to your draft answers. If there are any errors, make sure they are corrected. You are signing these under oath. Many plaintiffs have gotten in trouble because they never bothered to read interrogatory answers that were changed by their lawyers. Don’t assume that your lawyer’s office made no mistakes in the revision process.

If, after your interrogatory answers are provided to opposing counsel, you realize that you forgot to include something in your answers (or you made a mistake), tell your lawyer as soon as possible. It is easy for him to provide a supplemental answer correcting the error and it is best done as soon as possible. It looks far better if you voluntarily disclose the error or omission than it does if the defendant discovers it on his own.

As a final piece of advice, never, ever, intentionally lie on your interrogatory answers. If you are caught, the court can impose severe sanctions, up to and including the dismissal of your lawsuit.

How to Testify at Trial — Direct Examination

Your lawyer will get the first chance to question you at trial. This is called direct examination. During direct examination, your lawyer is not allowed to ask you “leading questions” (questions which suggest the answer), so it is important that you know the questions your lawyer will ask and the type of answer he is expecting before you take the stand.

Different lawyers have different ways of preparing witnesses for trial. For me, the most straightforward way is simply to provide my witnesses with a “script” which lists the questions I will ask and the answers I am expecting. Before you get nervous expecting that you’ll have to memorize “lines” for trial, know that the purpose of such a script is not memorization. Rather, it serves several other purposes:

• It lets the witness know exactly what questions will be coming. Otherwise, he may try to shoehorn information into a question where it doesn’t belong, not realizing that this information would be elicited by a later question.
• It lets the witness know what type of answer I’m expecting. So, if the question isn’t entirely clear to the witness, he will still know what information I seek from the answer I supplied. The answers I provided will come from the witness’ prior deposition testimony or from other conversations we’ve had.
• It gives the witness the chance to warn me if the answer he’ll give is substantially different from the one I anticipate. If so, I may change the question or drop it entirely. The last thing either of us wants is a surprise at trial.

So, while the script provides the witness with the exact questions I’ll be asking, the answers are only meant to provide him with the gist of the answers I expect — not the exact answers. Trying to memorize answers is a bad idea. It will just make you more anxious about testifying and will make your testimony seem unnatural, rehearsed and therefore, less credible — and before you ask, you cannot bring a script up to the witness stand with you.

While your own lawyer may have a different way to prepare you, if you like the “script” approach, feel free to suggest it to him.

How to Testify at Trial — Cross Examination

After your direct examination, it is likely that the defense lawyer will question you — this is cross examination. During cross examination, the defense lawyer can and will ask you leading questions. You can usually identify leading questions: they are more like statements you will be asked to “agree or disagree” with, or ask if it is “fair to say” something. For example, “Is it fair to say that you had a substantial back injury years before your injury in this accident?” or “Would you agree that your doctor’s records accurately reflect your conversations with him?”

If at all possible, never agree 100% with the defense lawyer’s leading questions. Rather, qualify your answers with things that help your case. For example, using the above questions, you could answer “While I did have a back injury years ago, the pain from it had completely resolved before the accident with your client” or “I don’t know that I’ve read all of my doctor’s records, but I’d be glad to address any particular statement he attributed to me if you could be more specific.” This is not to say that you will be able to disagree with, or even qualify, all leading questions — but when you can, do so.

While you won’t have the benefit of a script when preparing for your cross-examination, you will have the next best thing — your deposition transcript. It is important to read through this several times before your trial, just so you can be sure to answer consistently with your prior testimony. Again, memorization is not the goal. You just want to be familiar with the nature of your prior answers.

Testifying at trial in a way that is inconsistent with your deposition testimony needs to be avoided at all costs, as it can severely damage your credibility with the jury. Obviously, you should give special attention to any deposition testimony you gave which hurts your case. Your lawyer can help point those answers out, and tell you the best way to address them at trial.

How to Testify at Trial — Demeanor

While you do not want to testify like a robot, you do want to maintain a “level” demeanor when testifying at trial. This is especially true during cross examination. The defense lawyer may try to provoke you to anger. Do not take the bait, no matter how insulting his questioning may be (such as if he implies that you are a liar or a malingerer). You want the jury to see the face of the sympathetic victim, not the angry revenge-seeking hothead. Juries hate bullies, so let the defense lawyer come across as one. If you match his aggression, you may lose the jury’s sympathy.

On a more practical (and theatrical) note, if at all possible turn to look at and speak directly to the jury when giving your answers. It may seem awkward not to look at the person who questioned you when giving your answers, but make the effort. Remember that the jury is your audience, not the lawyers. When making eye contact with the jury, remember to move your eyes from person to person (just go down the row and then back again, pausing briefly at each person). Don’t just focus on the one juror who seems to be paying the most attention. Not only will this risk making that juror uncomfortable, but it also ruins the opportunity to connect with other jurors and force jurors who are “drifting off” to snap back to attention.

How to Testify at Trial — “Taking the Sting”

A common practice at trial is to address the shortcomings of your case during direct examination. This is called “taking the sting.” If you leave the “bad facts” in your case until cross examination, it will appear to the jury that you were not telling them the whole story — that you were being less than honest and that the defense lawyer had to force the information out of you. By addressing the “warts” on your case during direct examination, you rob the defense lawyer of the powerful moment when he brings it up for the first time — you “take the sting” out of the bad testimony by pre-emptively preparing the jury for it.

Obviously, when you “take the sting”, you try to minimize the impact of the bad facts as much as possible. If you have a pre-existing condition, for example, you can address it in a much more favorable light while your own lawyer is controlling the questioning. It’s like giving the jury a vaccine for the virus the defense is about to unleash. Not only do you come across as honest for divulging bad facts on your own, you also control the jury’s first impression of these bad facts. So, during your trial preparation, when your lawyer tells you that he will ask you questions which hurt your case, don’t think he’s crazy. There is a very good reason to employ this strategy.

What Will I Testify About at Trial?

Remember that you are not the only witness in your case, and that in addition to other witnesses there will be substantial documentation submitted as exhibits to support your claim. You won’t be expected to know the details of or the reasoning behind your medical treatment, or how much your medical bills are. Your doctors and their records will address those issues. Your work records will support your wage loss claim. You will testify about those things which cannot be better served by another witness or exhibit.

Expect to testify about how the accident happened (and how certain body parts were hit or twisted during the accident). You will testify about your pain, both from the accident and the medical treatment needed to treat your injuries. You will testify about the things that you used to do that you either can no longer do or that you can now only do with pain.

You will address the emotional pain and frustration caused by your injuries. Loss of a job, inability to play with your children, and inability to do the things in life that brought you joy or gave you self-esteem are the types of things you are best suited to describe to a jury. While you should not exaggerate your physical and emotional injuries, if you are one of those people who “suffer in silence” you will need to overcome this instinct at trial if you want the jury to fairly compensate you. Trial is not the time to put on a brave face. Be honest, even if it is embarrassing or “unmanly” to do so.

How Long Will I Be on The Witness Stand?

Every case is unique, so factors such as:

• whether liability (fault) is contested,
• the extent of your injuries,
• the extent of your recovery, and
• the number of any pre-existing conditions

will affect the length of time you are on the witness stand.

Expect that your trial testimony will be significantly shorter than your deposition. Often, other witnesses, such as your doctors, will be on the stand longer than you due to the level of detail required from their testimony. Many plaintiffs can expect to be on the stand less than one hour.

If your lawyer gives you a script, you can estimate the amount of time it will take to go through your direct examination. If you add about half of that time for cross examination and then half or a third of that for re-direct (your attorney may question you again after the cross), that would be a fair approximation of how long you will be on the stand.

How to Testify at Trial — Final Thoughts

As with many things, the anticipation of testifying at trial is usually much worse than actually doing it. Don’t drive yourself crazy with worry. Remember that your testimony is only part of your case — it may not even be the most important part (often medical expert witness testimony will be the deciding factor between a good and bad outcome). Hopefully, your lawyer will prepare you in such a way that your jitters will be kept to a minimum.